Marlboro could face the threat of lawsuits from developers who may sue to obtain permission to construct affordable housing following a court ruling which determined that for years, Marlboro has not lived up to a state mandate to provide for the development of affordable housing.
On Sept. 9, 2010, the state Council on Affordable Housing (COAH) denied Marlboro’s third round re-petition for substantive certification — which would have protected Marlboro from the threat of lawsuits filed by developers — and dismissed the township from its jurisdiction.
Marlboro officials appealed that decision.
In August, the New Jersey Superior Court Appellate Division denied the township’s appeal and said, in part, “COAH gave Marlboro years of opportunities to perfect its plans. That Marlboro chose not to do so triggered the consequences it now faces.
“Hence we see no error on COAH’s part in deciding that the Mount Laurel (affordable housing) issues were best addressed before a judge, as Marlboro simply failed to engage in the alternative process in good faith. This conclusion was neither arbitrary, capricious, nor unreasonable,” the court wrote.
“Marlboro has fulfilled only a fraction, approximately one fifth, of its 1,019-unit second round (affordable housing) obligation. The township has avoided its obligations by obtaining multiple postponements during the COAH review process, shifting project sites and requesting additional postponements when confronted by COAH’s demands for further information.
“After years of inaction, counsel for various developers, led by American Properties, filed a motion in May 2010 for Marlboro’s accelerated dismissal from COAH’s jurisdiction. Marlboro not only opposed the application, but also sought a further extension of time in which to negotiate.
“The township attributes some of the delay to factors beyond its control, such as the governor’s executive order suspending COAH operations, appeals challenging the third round regulations, and the introduction of legislative proposals designed to alter the affordable housing laws,” the court wrote.
“Due to the sheer volume of information regarding prior Marlboro-related proceedings, COAH referred the motion and crossmotion to a task force for review. The task force reported back to the entire body.
“While the task force considered the matter, on July 23, 2010, Marlboro re-petitioned COAH with a revised housing element and fair share plan. … Responses and replies were also filed, including quotations from individual COAH members who expressed their frustration with Marlboro’s repeated delays over the years during the application process. “At COAH’s Sept. 8, 2010, meeting, its chief counsel represented that the task force had met on July 8 and recommended granting American Properties’ motion for accelerated dismissal. A second task force had met on Aug. 25, 2010, to reconsider the motion in light of the July 2010 re-petition, and also recommended that the motion for accelerated dismissal be granted. Upon receiving these recommendations, COAH voted to grant the motion and dismissed Marlboro from its jurisdiction.”
Asked to comment on the August court ruling, Marlboro Mayor Jonathan Hornik said, “As a result of the decision of the state Supreme Court this past March (to abolish COAH), Marlboro, along with all other municipalities, has been forced to address its affordable housing obligation in the courts.
“The Supreme Court’s decision is a direct result of the state government’s abdication of its responsibility and the gutting of the procedural protections contained in the Fair Housing Act.
“We will continue to defend and protect the character of our community and preserve our open space while addressing the township’s affordable housing needs with the court. We will not just hand over our town to greedy developers under the guise of affordable housing.
“Given the utter state of confusion that has been wrought by the state’s failure to act, I will not comment for now on any specific aspect of this ongoing litigation,” Hornik said.
Affordable housing in New Jersey is in a state of flux because COAH failed, according to the Supreme Court, to establish rules and regulations pertaining to affordable housing and the court said the judiciary would now be responsible for handling affordable housing matters.
At present, municipal officials do not know how many units of affordable housing their community must provide.
Affordable housing is defined as housing that is sold or rented at below market rates to individuals or families whose income meets regional guidelines that had been established by COAH.
In commenting on the August court ruling, Kevin Walsh, the associate director of the Fair Share Housing Center, Cherry Hill, said any party, such as developers and land owners, can now sue Marlboro with an interest in land that could be used to meet the municipality’s affordable housing obligation.
Fair Share Housing Center is the only public interest organization entirely devoted to defending the housing rights of New Jersey’s poor through enforcement of the Mount Laurel Doctrine, the landmark decision that prohibits economic discrimination through exclusionary zoning and requires all towns to provide their “fair share” of their region’s need for affordable housing, according to its website.